In its continuing repudiation of policies developed under the Trump Administration, the National Labor Relations Board (“NLRB” or “Board”) has published its Fair Choice-Employee Voice Final Rule.
In April of 2020, the Board published a final rule addressing various union representation issues: (1) union elections while unfair labor practice (“ULP”) charges are pending, (2) voluntary recognition procedures, and (3) Section 9(a) recognition in the construction industry. The Biden Administration NLRB issued proposed regulations in November 2022 to reverse that rule, and has now published its own final rule that reestablishes the NLRB’s pre-2020 election representation policies and procedures.
As we previously reported, the Trump-era final rule required the Board’s regional directors to conduct representation elections and promptly count votes, with limited exceptions, even if there were a ULP charge pending. Under the new final rule, the Board returns to its pre-2020 “blocking charge” policy and reestablishes a regional director’s authority and discretion to delay a representation election if an unfair labor practice charge is sufficiently serious to interfere with employee free choice. To help ensure that a charge is “sufficiently serious” (and not simply a frivolous attempt to delay an election), the Board also reinstituted a 2014 amendment to the Board’s election rules requiring that the charging party present a list of witnesses who are able to attest to and testify about the charge.
The 2020 final rule also established new voluntary recognition parameters by requiring a 45-day waiting period following an employer’s voluntary recognition of a union as representing certain of its employees, in order to allow employees an opportunity to challenge recognition. Even if an employer and union entered into a voluntary recognition agreement, employees had a 45-day period in which they could demand a representation election to contest the voluntary recognition. The new final rule removes that waiting period completely and, instead, restores the six-month bar on decertification petitions following voluntary recognition.
Finally, Section 8(f) of the National Labor Relations Act (“NLRA”) allows employers in the construction industry to recognize a union even without the union demonstrating the support of a majority of employees in the proposed bargaining unit (a ULP outside the industry), commonly known as “pre-hire” recognition . The more common Section 9(a) recognition provisions require a showing of majority status before an employer may lawfully recognize as a representative of its employees. For these reasons, Section 9(a) relationships are afforded more protections than those relationships established under Section 8(f). Under the 2020 Trump-era final rule, in order to convert a Section 8(f) relationship to a Section 9(a) relationship, the union had to provide “positive evidence” of majority status when seeking the conversion. Under the new final rule, the Board returned to its pre-2020 policy, eliminating the need to show “positive evidence” of majority status at the time of the attempted conversion. Such a change will make it easier to convert Section 8(f) relationships to Section 9(a) relationships and give greater protection to many construction industry unions without their having to prove support of a majority of employees.
The Board’s final rule will go into effect September 30, 2024 (60 days after its August 1, 2024 publication). However, it is likely to face legal challenge, particularly given the Supreme Court’s decision to overturn Chevron and give less deference to administrative agency actions.
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